{
  "id": 11273271,
  "name": "EDWARD JAFFRAY et al. v. SOLOMON BEAR et al.",
  "name_abbreviation": "Jaffray v. Bear",
  "decision_date": "1887-09",
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  "first_page": "58",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T17:51:55.485321+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "EDWARD JAFFRAY et al. v. SOLOMON BEAR et al."
    ],
    "opinions": [
      {
        "text": "MerrjmoN, J.\nThe following is a copy of the case stated on appeal for this Court:\n\u201cPlaintiffs having announced their readiness for trial, the counsel of. the defendants suggested the death of Marcus Bear, one of the defendants, since the last term. The fact of the death was not controverted, and the defendants' counsel stated that he believed the defendants were ready for trial, but the case was not in condition to be tried. That the personal representative of Marcus Bear was an indispensable party, and was not before the Court, and in his absence the case could not be tried. The plaintiffs\u2019 counsel insisted that such personal representative was not a necessary party, and urged an immediate trial of the cause. The Judge ordered the case to be continued.\u201d To this ruling the plaintiffs excepted and appealed to this Court.\nIt has been repeatedly and uniformly held by this Court that no appeal lies from an order continuing the action for trial or other proper proceeding in it. Such order is made in the exercise of the discretion of the Court, and is not reviewable. And moreover, the appeal could serve no practh cal purpose, as before this Court could hear and determine it, the term of the Superior Court at which it was sought to have the trial, or other proper steps taken, would terminate, necessarily leaving the case open for proper action in it at the next succeeding term. Austin v. Clark, 70 N. C., 458; State v. Lindsay, 78 N. C, 499; Isler v. Dewey, 79 N. C., 1; State v. Vann, 84 N. C., 722; Johnson v. Maxwell, 87 N. C., 18.\nThe counsel for the appellants insisted in the argument that the Court below erroneously held that the personal representative of the deceased defendant was a necessary party defendant, and this sufficiently appears in the record, and that in effect the appeal was taken from the decision of the Court in this respect. If it certainly appeared from the record that the Court so decided, it might well be questioned whether an appeal would lie from an order directing the personal representative to be made a party, as such an order would have been only interlocutory, but it does not appear that such a decision was made, unless by mere doubtful inference.\n. The Court seeing that the action did not necessarily abate by the death of a party, may have deemed it just and proper to continue the action, to the end that reasonable opportunity might be offered any of the several defendants interested to take steps to make the personal representative a party, or to allow him such opportunity to apply to be so made, leaving any and all questions as to the necessity and propriety of making him a party, or his right to be so made, to be decided when they -should arise in the course of the action. Indeed, this seems to have been the view the Court took, acting on the suggestion of the appellees\u2019 counsel. Orders and judgments appealed from should always appear in the record with certainty.\nThe appeal was improvidently taken, and must be dismissed.\nDismissed.",
        "type": "majority",
        "author": "MerrjmoN, J."
      }
    ],
    "attorneys": [
      "Messrs. Thos. W. Strange and M. Bellamy, for tbe plaintiffs.",
      "Messrs. George Davis and D. L. Russell, for the defendants."
    ],
    "corrections": "",
    "head_matter": "EDWARD JAFFRAY et al. v. SOLOMON BEAR et al.\nApp>eal\u2014 Continuance.\nThe order of the Court directing the continuance of an action, upon suggestion of the death of a party \u2014 although not a necessary party\u2014 will not be reviewed upon appeal.\n{Austin v. Olarh, 70 N. C., 458; State v. Lindsay, 78 N. C., 499: Isler v. Dewey, 79 N. C., 1; States. Vann, 84 N. C.,\u2018722; Johnson v. Maxwell, 87 N. C., 18; cited and approved).\nMotion beard before Philips, Judge, at September Term, 1887, of New PIaNOVer. Superior Court.\nMessrs. Thos. W. Strange and M. Bellamy, for tbe plaintiffs.\nMessrs. George Davis and D. L. Russell, for the defendants."
  },
  "file_name": "0058-01",
  "first_page_order": 90,
  "last_page_order": 92
}